On a sunny afternoon on August 17, 2003, Chris Long got together with his family to swim and jet ski on Bear Lake. He lived for days like this, a rare day of fun sandwiched between 16-hour workdays that he routinely worked for his trucking business. Jody, his 18-year-old daughter, a pretty dark-haired girl, just out of highschool, had arrived a little late. She and her dad quickly decided to take a spin on a couple of jet skis. They buzzed around the lake for 15 minutes when Jody noticed her dad was lagging behind. She slowed for him to catch up, and out of the corner of her eye, she saw something fly off his Polaris Waverunner. She did a quick turn and within seconds took in the scene: her dad was bobbing unconscious in the water, his head slumped forward, his life jacket holding him up. The jet ski lay on its side, the Polaris hood floating nearby. She did a first pass-by, not going slow enough to stop, and screamed, “Dad!!” No response. She circled around and came to a complete stop. She got a good look at his face. Blood streamed out of his nose and mouth. His face was swelling into a mask of black and blue. His left eye was swollen shut. He slowly came to, groggy and disoriented. Sobbing and screaming for help, Jody pulled him onto the back of her jet ski and towed him to shore.
JURY TRIAL A Kalkaska County jury heard the story of Chris Long last week in the courtroom of 46th Circuit Judge Dennis Murphy. The couple’s attorney, Blake Ringsmuth, described how Chris was driving the Polaris jet ski at about 28 mph when the hood flew off, smashed into his face and shattered his facial bones. He was eventually airlifted to St. Mary’s Hospital in Saginaw, where he spent six days waiting for the swelling to go down so he could undergo recon-structive surgery. The trial was an interesting one. Polaris acknowledged that the product was at fault, so the jury was only asked to decide the amount of damages. It also had to add “loss of consortium” damages for his wife Lisa. Punitive damages are not allowed in Michigan and weren’t considered. On Tuesday, October 17, the jury awarded Chris and his wife, Lisa, $3.4 million. But because of a “high-low” agreement reached before the verdict, Polaris will pay $2.6 million. A high-low agreement means that attorneys on both sides decide on a minimum and maximum award and agree to not appeal the decision. The minimum was set at $725,000 and the maximum at $2.6 million. But even at $2.6 million, it’s the largest jury award in the Grand Traverse region for a personal injury case, and for all cases except a $9.2 million settlement in an oil and gas production dispute, that was later appealed, according to Grand Traverse county officials.
WHAT THE JURY DIDN’T HEAR The couple went to Ringsmuth a couple of months after the accident, but were deeply skeptical of lawsuits and lawyers. Lisa Long thought the company would simply send money since they had issued a recall. Ringsmuth explained that Polaris would probably pay something, but not anywhere near what was fair. As he prepared for the trial last year, he asked Polaris for internal documents and records of previous lawsuits that he hoped would prove Polaris knew about the hinge defect on the hood in 1999, four years before it recalled the watercraft. He quickly got a call back from one of the corporate attorneys. Polaris refused to release many of the documents, but made Ringsmuth a deal in mid-2005. They would admit to liability—that their product was defective. In exchange, the company would agree to lift the state’s cap of nearly $600,000 for pain and suffering. (Economic loss such as wages and out-of-pocket expenses are not capped.) As part of the deal, Polaris requested that the jury not be told of previous lawsuits or reported injuries involving the watercraft. In late 2005, Ringsmuth attempted to settle the case out of court with an experienced mediator. Ringsmuth laid out the facts of Long’s everyday life. Most significantly, he suffered from brain damage. He couldn’t focus, his short-term memory was shot, and he often had to search for the words. At work, he needed an assistant to “shadow” him, to help him remember things. He could no longer work as the company’s main mechanic and hired a man to help out. That was his economic loss, along with medical costs. His severe and chronic facial pain also deserved compensation, he explained to the attorney. The Polaris attorneys at a second meeting gave the Longs an offer: $100,000. And then they walked into the hallway to wait for an answer. Chris Long said he was so insulted, he felt sick.
OTHER CASES Northern Express discovered there was at least one lawsuit in addition to this one (all watercraft incidents must be reported to the U.S. Coast Guard). There was a case out of Tarrant County, Texas, settled out of court with Polaris in 2003 for a 2001 accident very similar to Long’s—the hood flew off due to a defective latch and struck him in the face. The settlement is confidential, according to a 48th Judicial District court clerk. Polaris issued a recall notice on the jet ski, one day after Chris’ accident. Lisa Long remembers retrieving it from the mailbox late one night after getting home from the hospital. Polaris then took its jet skis off the market, citing profit losses a year after the accident. Chris Long wishes they’d done it sooner. “The (Waverunners) should have been taken off the market when the problem was discovered. They took the chance of hurting people and they didn’t care.” The jury of six women and one man was made up of regular working types, a good cross-section of the community. The topic of civil lawsuits was brought up during jury selection. Did they have any feelings, for or against, large lawsuits? Were they willing to put a hard number on what’s very difficult to quantify—pain and suffering. Early on, it seemed that Polaris was putting the whole concept of lawsuits on trial. The two attorneys hired by Polaris, Fred Fresard and Kevin Curry, predicted that Ringsmuth would ask for “gigantic numbers,” and charged that his economic expert, Calvin Hoerneman, used “monkey math” and was bringing “junk into the courtroom.” Fresard asked in closing arguments that the jury serve as Kalkaska’s conscience, and do the “right thing”—refuse to hold Polaris accountable for what was essentially Long’s fault because he didn’t take full responsibility for his recovery.
ECONOMIC DAMAGES Ringsmuth had a tough case to prove in terms of showing how the accident affected Long’s earnings. In fact, Chris Long had made the same modest salary for years, and it stayed the same post-accident. Long is CEO and sole owner of his trucking company, Destination Unknown, What did change was that he relied on others to help fill in. One man, a driver, became his office assistant, and Long also hired a mechanic. Despite that, the company’s gross revenues increased from $1.5 million to $1.9 million post-accident. His assistant testified that Long was functioning at about 50% of his normal capacity. He forgot things and had to constantly make to-do lists. He made it a point to speak slowly to Chris and to repeat himself. He said that Long couldn’t remember the sequence of hooking up a specialized trailer for oversized loads. “I have to do that now. Years ago, Chris would have taught me how to do that.” His assistant explained that gross revenues did go up, but that’s because gas prices were higher and the company was doing more sophisticated jobs, such as hauling oversized loads. Ringsmuth conceded that Long went back to work six weeks after the accident because he was determined that the company succeed despite his accident. But he argued that the company’s earnings were inextricably tied to Long’s mental abilities, physical health, and time on the job. Since the accident, Long took 169 trips to the doctor and the drugstore for prescriptions, he said. Polaris argued that Long did not suffer economic damages. Fresard charged that Ringsmuth had grossly inflated the numbers that the mechanic and assistant had to work to compensate for Long’s disabilities. He also questioned the prescription drug costs and Lisa Long’s claim that she had to take on more household duties because her husband was partly disabled. He contended that the jury should award her $300 every three years in compensation for the loss of her husband’s household services because that’s all she paid out-of-pocket since Chris’ accident.
PAIN & SUFFERING Long spent 12 days in the hospital. The surgeon had to cut the edge of his hairline, peel the scalp forward, and use a Black and Decker cordless drill to screw in about a dozen plates to give a form to his face and allow the shattered bones, the thickness of an egg shell, to knit back together. Several small pieces were missing. Small chains were laid beneath the eye sockets. The surgery took about five hours, testified Thomas Hyde, the oral maxo-facial surgeon who performed the operation. Since the surgery, Long experiences different sensations: a “pins and needles” feeling like when your foot falls asleep, cold, heat, numbness, and pain for which he takes constant medication. Long’s face is raspberry colored. He looks like a burn victim with red veins visible through his skin. The shield hit hardest on his left cheek, and his left eye droops a bit. He has a different face than before. Ringsmuth told the jury about Long’s most recent dilemma. Because of numbness, he didn’t realize last January that pressure was building in the sinus cavity. Long had an infection. Pus and bacteria were pooling and pressing behind the steel plate. It needed a place to go, and it went the path of least resistance—into a hole that connected the sinus cavity into his mouth. And then one day, the pus gushed into his mouth. The pus drainage into his mouth and the bad taste is now constant, and Long has to travel to Cadillac to get it flushed and rinsed out twice a week. In fact, Long had to take a day off from the trial for the procedure, which Ringsmuth videotaped and entered as an exhibit. Long will have a steel plate removed next month, and a doctor testified that it may resolve the problem. HIS OWN MAKING Polaris’ attorney Fred Fresard said that Long’s problems were largely his own making because he ignored doctor’s orders to go to a pain and memory clinic that would help teach him how to “take his mind off his pain” and help him develop coping strategies for memory loss. He also failed to go to a sleep clinic, which would have helped him with his sleep disorder. An expert witness said Long’s stutter resulted from emotional problems, not the accident itself, and yet Long had not sought psychological counseling. “He didn’t follow up on a single recommendation,” Fresard said. Fresard also pointed out that Long was a heavy smoker, a habit that potentially slows healing because it inhibits oxygen delivery. Yet Chris Long delivered the most convincing testimony. Although clearly intelligent, he struggled for words and misinterpreted a document a Polaris attorney handed him. After Long took the stand, Polaris advised Ringsmuth it would immediately settle for $350,000.
TOUGH CHILDHOOD Chris Long, 47, had a tough childhood. He missed a lot of school because his single mother worked and couldn’t afford daycare. So Long would often skip school to care for his younger sister and brother. He missed an average of 30 school days a year, earned mostly Bs, and Cs, and dropped out of school at the age of 17. An early interest in mechanics was his salvation; he began the Destination Unknown trucking company in 1992. Two years later, he married Lisa, who helps run the company. Jody, his daughter, described her dad as somewhat of a workaholic, putting in 70 hour weeks. Even after the accident, he would push himself to work up to 40 hours. During a break in the trial, Chris explained that he didn’t go to the pain and memory clinic because every time he’d get one huge health problem under control, another would pop up. Struggling to find the right words, he said it took a lot of time and he had to balance it with work. Lisa Long said that last year, for example, his hands became hooked and turned white because the blood flow was somehow disrupted. “His hands looked like a dead person’s. His elbow puffed up like a marshmallow. It exploded and drained out stuff—it happened about six times,” Lisa said. He ultimately required surgery on both arms, she said.
CLOSING ARGUMENTS To come up with the award, the jury was given worksheets to calculate specific damages. Ringsmuth proposed putting pain and suffering in this framework: “Polaris has given Chris a job, a pain and limitation job. Their ad would read this way: Multiple surgeries on your face, brain damage, permanent for the rest of your life. Chronic pain for the rest of your life. You’ll be on pain medication, your face will be changed for the rest of your life. Inability to concentrate, short-term memory loss, a decreased sex drive. And this job is for 365 days a year. No vacation, no 401K and you never get time off except when you’re sleeping, if you’re lucky enough to sleep the whole night. Who would take that job?” Then he borrowed a phrase that Polaris attorney Kevin Curry used earlier in the trial when he was making the point that Chris Long should have taken the time and expense to attend a memory clinic. “What is a brain worth?” “That is an excellent question. What is a brain worth?” Ringsmuth said, asking the jury repeatedly throughout his closing arguments. Fresard argued that Polaris should be responsible for the medical costs of $47,649 (which both sides agreed upon), but the jury should not hold the company liable because Long failed to go the pain/memory and sleep clinic. “Mr. Long did get banged up in this accident and he has some real pain and damage. But $12 million should shock your conscience (note: that number was never mentioned in the trial). Mr. Ringsmuth argues this case is about responsibility. The hood came off and hit Mr. Long in the face. And isn’t it refreshing in the age of Enron, that Polaris admitted, ‘Yes, our product hurt this guy’? Isn’t that refreshing that we’re taking responsibility? But physicians ordered their patient to follow up on medical care and the patient chose not to follow them. … The patient was supposed to take ‘ordinary care’ for maintenance of his body and mind. .. Polaris cannot be held responsible for injuries sustained for his failure of not following up on the physician’s orders.” Neither Ringsmuth nor Fresard directly asked for a bottom-line number from the jury. However when adding up suggested compensation, Ringsmuth asked for $5.5 million and Fresard for $455,000. During the jury deliberation, I asked Chris Long: How much would he take for his new job? Chris didn’t have to search for words as he usually did. “There is no amount of money,” he said. “I’d like the jury to give any one of those (Polaris) attorneys, give them a month of me. A month of my mornings, a month of my pain. Even a week. They couldn’t take it, even for a week. Chris and Lisa Long were back at work the next day, relieved but a little overwhelmed trying to catch up on paperwork.
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